Child Custody Flashcards
Legal Custody
Health, Education, Religion
Physical Custody
Right to have the child reside with the parent or guardian and the obligation to oversee daily routine care and control the child
Joint Custody
Both parents are willing and able to cooperate regarding the well being of the child. Neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Dictates which courthouse jurisdiction to decide child custody and visitation rights.
Initial Custody Determination Jx (UCCJEA)
When does a court have smj?
- Child’s home state (with parent/guardian for 6 consec months, or since birth if child is <6 months old); OR
- Was the childs home state in the past 6 months, the child is not there, but one parent still lives there
if not met, look to significant connection jx
The state that makes the initial ruling in a custody case has exclusive continuing jurisdiction unless the party’s no longer reside in the state or the child no longer has a significant connection to the state.
Significant Connection Jx
(1) If there is no home-state for Jx (2) the child and at least one partent have a significant connection with the state and (3) there is substantial evidence in the state concerning childs care/protection/training/personal relationships
Best Interests of the Child Standard
- Primary Caretaker: Many courts consider who the primary caretaker of the child was during marriage, separation, and before divorce.
- Child’s Preference: Courts will consider the wishes of an older child if they are sufficiently mature. Their evening will be considered.
- Race/Religion: Courts** do not use race or religion** in determining custody.
- Third-Party Rights: gparents, aunts/uncles, may wish to have custody
Temprary Emergency Jx
The court that that does not typically have jurisdiction over child custody may exercise jurisdiction in emergency situations where the child is in danger and action requires immediate protection.
Legal Parent Presumption
- Legal parents are presumptively entitled to custody of their children UNLESS it has been established that they are unfit and or it would be detrimental to the child
“Parent By Estoppel” or “De Facto” Parent
It’s the natural parent has little to no connection with the child or if the child has lived with a 3rd party for a significant amount of time the courts have employed parent by astoppel or de facto parent to get around the legal parent presumption.
Visitation: Noncustodial Parent
Generally, non-custodial parents are allowed reasonable visitation with a minor child
Parents have a constitutional right to visitation, UNLESS it would seriously endanger a child’s physical, mental, or emotional health
Visitation: Unwed Bio Father
An unwed biological father has a substantive due process right to have contact with their child.
ONLY if they demonstrate a commitment to the responsibilities of parenthood.
Visitation: Third Parties
Third parties may be permitted two visitation, but it’s typically limited to situations where they have acted in loco parentis with the child prior to divorce.
Modification of a Custody Order
- Intitial state has exclusive jx
- Parent seeking modifcation must show a significant change in circumstances
Look to best interst of the child and substantial stability in life
Relocation
Custody Orders
If custodial parents wants to relocate child in a way that impairs noncustodial parent’s ability to visit, they mst show a legitimate and reasonable purpose
Courts look to:
* Best interest of child
* Relationship with noncusodial parent
* Age and needs of child
* Child’s preference
* Quality of life of relocating
